Faloon v. Simshauser

• Decision Date: 31 October 1889
• Citation: 22 N.E. 835,130 Ill. 649
• Parties: FALOON et al. v. SIMSHAUSER et al.
• Court: Illinois Supreme Court

130 Ill. 649

22 N.E. 835

FALOON et al.

v.SIMSHAUSER et al.¹

Supreme Court of Illinois.

Oct. 31, 1889.

Appeal from circuit court, McLean county; OWEN T. REEVES, Judge.

Ejectment by Hannah, Philip, Allen W., Benjamin F., Peter P., Mary Belle, Sarah W., and Henrietta Simshauser against Matthew Faloon and Thomas F. Tipton. Judgment for plaintiffs for an undivided seven-eighths of the land. Defendants appeal.Thomas F. Tipton, for appellants.

Williams & Capen, for appellees.

BAKER, J.

This was ejectment against the appellants, Matthew Faloon and Thomas F. Tipton. The premises in controversy were a strip of ground beginning at the south-west corner of lot 1, in White's addition to the town, now city, of Bloomington, and running thence north to the north line of said lot; thence west 29 feet; thence south to the north line of Grovestreet; and thence east 29 feet to the place of beginning. The appellant Tipton exhibited at the trial a title in himself, through mesne conveyance, from the government of the United States. The important matter in controversy is whether his right of possession has been barred, in respect to the rights of appellees, by the operation of the statute of limitations, which tolls, after 20 years' of adverse possession, the right of action for the recovery of lands and the right to make an entry thereon. Lot 6, in Gridley's addition to Bloomington, lies west of lot 1, in White's addition to Bloomington, and this strip of ground now in question, 29 feet wide, lies between them. In 1852 one Jesse Adams was in possession, under paramount title, of the cast half of lot 6, of 56 feet off of the west side of lot 1, and of the strip of 29 feet, and fenced all these pieces of land in one inclosure, and erected a brick house on the strip in dispute; that being about the center of the combined premises. He remained in possession until September 7, 1858, when he executed a deed to Allen Withers, in which the premises conveyed were described as the east half of lot 6, in Gridley's addition, and 56 feet off of the west side of lot 1, in White's addition, and put said Withers in possession of the house, and of the whole of the premises. Withers retained possession of the entire inclosure, occupying it by his tenants, and claiming to be the owner of it all until his death, in 1864. He left a will by which he devised his whole estate to his wife, Sarah B. Withers. Mrs. Withers occupied the entire premises by her tenants, she claiming to be the owner of the same until August 8, 1871, when she conveyed by deed to ‘Hannah Simshauser and her children, * * * and their heirs and assigns.’ This deed also describedthe premises conveyed as the east half of lot 6, in Gridley's addition, and 56 feet off of the west side of lot 1, in White's addition. Mrs. Withers put her grantees into possession. Mrs. Withers states in her testimony that the house and premises were occupied by a tenant when she made the deed; that she turned over the lease to Mrs. Simshauser; that the latter collected rent from the tenant therein; that Mrs. Simshauser rented the place for two or three years, until the house was torn down, and that the Simshausers then rented the land for a garden, or something of that kind; that Mr. Funk had a garden there, and paid the taxes.

It seems, from the evidence, that the house having become somewhat dilapidated, Philip Simshauser, husband of Hannah Simshauser, had it torn down about 1874. The husband in his testimony, in response to a question as to what his wife and children did with the house after Mrs. Withers deeded it to them, answered: ‘We had it about two years, and we had so much bother about tenants paying the rent, and it wanted fixing up, so, after we looked it over, I tore it down.’ He also states that after the house was torn down his boys took the matter out of his hands, and had the premises rented out for a garden; and that nobody except them (the Simshausers) were in possession of or made any claim to the premises, until the claim made by appellant Faloon, in 1885. We think it evident, from this testimony, that whatever possession Philip may have had or authority he may have exercised in respect to the house, and the land connected therewith, was merely in behalf of his wife and children, and in assertion of their claims of title, and in conformity with their relative interests as supposed to be fixed by the deed they held, and in no sense under claim of a personal and individual right in himself. It is also manifest that the consecutive possessions of the strip of ground 29 feet wide, held by Mr. Withers, Mrs. Withers, and the grantees, in the conveyance of August 8, 1871, were supposed to be under and by virtue of the deeds made by Adams and by Mrs. Withers, respectively.

Appellant Tipton's title is derived through a quitclaim deed for the 29 feet, dated October 4, 1876, made by Jesse Adams to appellant Faloon, and a warranty deed from Faloon to himself, dated April 15, 1887. A possession of land, in order to be adverse, need not be under any muniment of title. Adverse possession is a possession inconsistent with the right of the true owner, and depends upon the intention with which it is taken and held; and an actual occupancy of land by one, accompanied by acts of ownership inconsistent with the fact of ownership in another, is presumptively adverse possession. The possession of Allen Withers, and that of his devisee, Sarah B. Withers, were very plainly adverse, in respect to the 29 feet, to the title of Jesse Adams, under which appellants claim, and these possessions continued from September 7, 1858, to August 8, 1871,-a period of 12 years and 11 months. So, also, the possession of appellees, under their deed from Mrs. Withers, was manifestly adverse to the title of which appellants seek to avail themselves; and it extended from August 8, 1871, until some time in the year 1885,-a period of almost or quite 14 years. It is not essential there should be proof of oral declarations of claim of title made by appellees, but it is sufficient if it appears they so acted as to clearly indicate that they did claim title. James v. Railroad Co., 91 Ill. 554. It follows that, if these possessions can be tacked together, there is an adverse possession shown in this case of some 27 years, and the bar of the statute against the title of appellants, even though it be the true title, is complete and became absolute in September, 1878.

Appellant urges, however, that where several persons, without privity of estate, successively enter on land as disseisors, their several possession cannot be tacked so as to make a continuity of disseisins, and that, in order to give a right to the bar under the statute of limitations, a party seeking to avail of such right must show privity of estate with the prior disseisors by purchase and conveyance of disseisin. It is a sufficient answer to this claim, and to the authorities cited, to show it is essential to establish by a deed that appellees are connected with the adverse possessions of Allen and Sarah B. Withers, to say that the question is not an open one in this state, and that the rule having been years ago determined...